MARITAL RAPE: DISTORTION OF SACRED BOND 

INTRODUCTION 

The Indian constitution enshrines women rights to equality, non-discrimination in employment and pay, adequate means of livelihood, prohibition of trafficking, freedom of choice and movement etc. By these constitutional rights every women is protection from the offence inflicted towards them. Other than this, even the heinous crime of rape is punishable with rigorous punishment under section 376 IPC. But still the women in our country are living in the state of fear, unhappiness and darkness because the act of Marital Rape is still immune from prosecution. The penal offence under section 375 and 376 IPC unequivocally avoids marital rape from ambit of conviction.  In India rape by an outsider is a penal offence under section 375 and 376 of IPC. Shockingly, it unequivocally avoids marital rape from ambit of conviction. It is recognized as a criminal offense in almost every country of the world, but India is one of the thirty-six countries that still have not criminalized marital rape.

MEANING OF RAPE AND MARITAL RAPE UNDER IPC

The term Rape has been defined under section 375 of IPC, 1860 and it states that a man is said to have commit the act of “rape” if he – penetrates, inserts his penis, to any extent, into the vagina, mouth, urethra or anus of a women or makes her to do so with him or any other person against her will or without her consent. The degree of penetration is unimportant, even the slightest penetration can amount to the offence of rape. On the other hand, marital rape refers to – sex by a husband with his better half without her consent or by force or danger. The act of Marital Rape is an Exception 2 to Section 375 which exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age and thus immunizes such acts from prosecution.

MARITAL RAPE AND RELATED LAWS IN INDIA

When someone commits a rape, we can usually think of a stranger or third person who might have committed rape. But when any person says that a husband raped his own wife, we may usually found it difficult to digest that how can someone rape his own wife? How can a man be accused of rape when he is availing conjugal rights? But there may also be a fact that a wife might living under constant cruelty, violence, torture, threat and mental sickness etc because of the benefits enjoyed by the husband behind the curtain of marriage. Sexual contact doesn’t means total submission of a body and dignified life to the husband in the excuse of marriage.

According to the current law, a wife is presumed to deliver never-ending consent to have sex with her husband after entering into marital relations. The Supreme Court of India and various High Courts have issued various writ petitions till now challenging the constitutionality of this exception to rape. Marital rape is not an offence in India. Enactments in regards to marital rape in India are either non-existent or dependent on the understanding of the courts.

VIOLATION OF ARTICLE 21  

• Exception 2 of section 375 IPC, is also violative of Article 21 of the Indian Constitution. Article 21 states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” It has been held that the rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment etc and marital rape is total violation of these rights provided under article 21.
• In recent years, courts have begun to admit that a right to abstain from sexual intercourse and to be free of non-consented sexual activity enshrined in right to life and personal liberty.
• Most recently, in Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court has clearly recognized a right to make choices in Article 21 as a right to make choices regarding intimate relations. The SC has also recognized the right to privacy as a fundamental right of all citizens. Forced sexual intercourse is a violation of that fundamental right. Thus, the Supreme Court in this case has recognized the right to abstain from sexual activity for all women, irrespective if they are married or not, as a fundamental right conferred by Article 21 of the Constitution.
• Moreover, Exception 2 also violates Article 21’s right to live a healthy and dignified life. The “right to life” provided in Article 21 doesn’t mean merely a right to exist only. There can be no dispute if every citizen of India has the right to receive healthcare. In this reference, courts have repeatedly held, that the “right to life” includes a right to live with human dignity as well. Thus it has been clearly visible that Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the Constitution.

Punishment For Martial Rape:

As per the Indian Penal Code, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under:

1. When the wife is between 12 – 15 years of age, the offence punishable with imprisonment up to 2 years or fine, or both
2. When the wife is below 12 years of age, the offence punishable with imprisonment which shall not be less than 7 years but which may extend to life and shall also be liable to fine.
3. When there is a Rape of a judicially separated wife, the offence is punishable with imprisonment up to 2 years and fine
4. Rape of a wife above 15 years in age is not punishable.

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

In 2005 the protection of women from domestic violence act was passed which did not consider marital rape as a crime, but instead consider it as a form of domestic violence. Under this Act, it was provided that a woman can go to the court and obtain judicial separation if she has undergone marital rape by her husband. Being subject to sexual violence by her own husband envelopes her in a sense of insecurity and fear. The consent to marry in itself encompasses a consent to engage into sexual activity but this type of consent does not mean consent to being inflicted with sexual violence. In these circumstances the law is found inadequate and deficient to protect the interest of those affected with the ailing of marital rape.

There is also a demand for the change of very definition of Rape under section 375 IPC. It has been criticized by the Indian and international women’s and children organizations, who insist that penal penetration should be replace by sexual penetration and it has also been said by international law that threatening, forceful, coercive use of force against the victim should be included as well.

42nd Law Commission Report:

The Law Commission of India in its 42nd report has put forward the need of excluding marital rape from the ambit of Section 375 and the punishment for the same may also be provided separately.

172nd Law Commission Report:

Even the 172nd Law Commission report which was passed in March 2000 had made the following recommendations for substantial change in the law with regard to rape:

• ‘Rape’ should be replaced by the term ‘sexual assault’.
• Sexual intercourse as contained in section 375 of IPC should include all Forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
• The laws should be made gender neutral as custodial rape of young boys has been neglected by law.
• A new offence, ‘section 376E’ with the title ‘unlawful sexual conduct’ should be created.
• Section 509 of the IPC was also sought to be amended, under which there should be provided higher punishment for the offence committed with sexual intent.
• In the case of Sakshi v. Union of India, ‘sexual assault on any part of the body should be construed as rape’.

JUDICIAL STAND

Queen Empress vs. Huree mohun Mythee

In the given case, the husband was convicted under section 338 of IPC for breaking the vagina of his eleven-year old wife, causing hemorrhage resulting to her death. The court observed that in case of married women, the law of rape does not apply between husband and wife after the age of 15 even if the wife is over the age of 15, the husband has no right to neglect her physical health, for example, if the situation is such that intercourse is likely to cause death. Then in these circumstances the husband can be convicted for his act.

T. Saretha vs. T. Venkata Subbaiah

In this case, Andhra Pradesh High Court held that, there is no doubt that a decree of restitution of conjugal rights offends the security of the body and mind due to the decree and invades the marital privacy and domestic intimacies of a person.

CONCLUSION

As we have seen the regular immunity from the marital rape from the system of criminal law, this might create anxiety among the groups of married women’s and they can be known as the exclusive property of the husband. In my opinion, the roots of these sufferings can be traced to the ideology of male dominant society in our country and female sexuality which treats a wife as a property and as having no decision making power in the matrimonial life. It is argued that marital rape should be criminalized in India by fully abolishing the distinction between marital rape and stranger rape. But marital rape will neither be criminalized nor punished, until legislators and the society acknowledge women’s individual rights within the marriage.

 

Author: Raman Saxena,
Delhi metropolitan education affiliated to GGSIPU